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ELCDismissedEnvironment and Land Case (not stated in excerpt; Notice of Motion dated 27th January 2025)· [2025] KEELC 6671 (KLR)

Ayado (Suing on her own Behalf as Married Woman and as the Administrator of the Estate of Ndege Jowi - Deceased) v Wangwe & another (Environment and Land Case 002 of 2023) [2025] KEELC 6671 (KLR)

Environment and Land Court
30 September 2025
3,658 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to pause a land case pending appeal, ruling that a dismissal order cannot be 'stayed' and delaying trials requires exceptional reasons.

What this practically means

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Executive summary

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The 2nd defendant, George Otieno Ochich, moved the court by Notice of Motion dated 27th January 2025 under Article 159(2)(a) and (d) of the Constitution, Section 63(e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking stay of execution of the ruling of Ongondo J delivered on 17th December 2024 - which had dismissed his application to expunge documents from the record and the plaintiff's contempt application - and stay of further proceedings pending an intended appeal to the Court of Appeal at Kisumu. He argued the appeal was arguable, that he would suffer substantial loss, and that continuing proceedings would render the appeal nugatory. The plaintiff opposed, contending the impugned order was negative and incapable of being stayed, that stay of proceedings is drastic and granted only in exceptional circumstances, and that the applicant was using the application to delay the hearing. The court framed a single issue: whether the application was merited. Relying on Kaushik Panchamatia v Prime Bank and Western College v Oranga, the court held the impugned order was negative - a mere dismissal with no order as to costs - and the amendments had already taken effect, so there was nothing to stay. On stay of proceedings, applying Kenya Wildlife Service v Mutembei and Global Tours & Travels, the court held the test is high and stringent, found no arguable ground in the memorandum of appeal, and held that any prejudice could be cured by a trial de novo if the appeal succeeded. The application was dismissed, with the matter listed for Order 11 compliance on 16th October 2025. The judgment contains contradictory costs orders.

Key legal issues

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01

Whether the order of 17th December 2024 was capable of being stayed

Holding

The order was negative in nature - it merely dismissed the applicant's applications with no order as to costs - and the amendments had already taken effect; there was nothing to stay and the prayers were overtaken by events

Reasoning

The court examined the impugned order and found it merely dismissed the applicant's applications to expunge documents with no order as to costs. Relying on Western College v Oranga as adopted in Kaushik Panchamatia v Prime Bank, a negative order is incapable of execution. Further, the pleaded amendments had already been effected and perfected, so the applicant could not stay that which had already been overtaken by events.

p. 6
02

Whether further proceedings in the suit should be stayed pending appeal

Holding

Stay of proceedings was refused because it is a drastic measure granted only in exceptional circumstances, no ground of the intended appeal was likely to be arguable, and no prejudice would result since the matter could be started de novo if the appeal succeeded

Reasoning

The court distinguished stay of proceedings from stay of execution, noting the former impinges on access to justice, timely disposal and fair trial, and attracts a higher and more stringent test. Article 159 of the Constitution and the Civil Procedure Act mandate timely disposal. Having reviewed the memorandum of appeal, the judge found no arguable ground, and any prejudice could be cured by a trial de novo if the appeal succeeded.

p. 7

Legal principles established

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  • A negative order, such as an order dismissing an application, is incapable of being stayed because there is nothing to execute
  • Stay of proceedings is a drastic judicial action granted only in exceptional circumstances because it interferes with the right of access to justice and fair trial; the test is high and stringent
  • Whether to stay proceedings pending appeal is a matter of judicial discretion to be exercised in the interest of justice, weighing the need for expeditious disposal, arguability of the intended appeal and expeditiousness of the application

Court orders

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  1. 1.The Notice of Motion dated 27th January 2025 is dismissed with costs to the respondent
  2. 2.The matter shall be mentioned on 16th October 2025 for compliance with Order 11 of the Civil Procedure Rules
  3. 3.Mention notice to issue
  4. 4.Each party shall bear their own costs
Jurisdiction invoked
Article 159(2)(a) and (d) of the Constitution of Kenya, 2010; Section 63(e) of the Civil Procedure Act (Cap 21); Order 42 Rule 6 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ayado (Suing on her own Behalf as Married Woman and as the Administrator of the Estate of Ndege Jowi - Deceased) v Wangwe & another (Environment and Land Case 002 of 2023) [2025] KEELC 6671 (KLR)", Case Analysis (2025). Environment and Land Case (not stated in excerpt; Notice of Motion dated 27th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6671/eng@2025-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.